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Profession defends rule of law in war on terror

Profession defends rule of law in war on terror

Battle lines have been drawn between the legal profession and government over the case of Mohamed Haneef. Clare Buttner reportsTHE BUNGLED case of terrorism suspect Mohamed Haneef has seen the…

Battle lines have been drawn between the legal profession and government over the case of Mohamed Haneef. Clare Buttner reports

THE BUNGLED case of terrorism suspect Mohamed Haneef has seen the government accused of undermining the court process and attempting to interfere with judicial independence.

The two ministers weathering the brunt of the criticism are Attorney-General Philip Ruddock and the Minister for Immigration and Citizenship, Kevin Andrews.

While the charges against Haneef have now been dropped, Ruddock stands accused by members of the legal profession of criticising the decision of Brisbane magistrate Janet Payne to grant Haneef bail, thereby attacking judicial independence.

Anti-terror legislation states that a person charged with a terrorist offence should only be granted bail under “exceptional circumstances”. In deciding to grant bail, Payne considered that the circumstances were in fact exceptional. Haneef, a Gold Coast doctor, had been charged with “recklessly” providing support for a terrorist organisation because he left a SIM card with a second cousin in the UK.

Following Payne’s decision, and that of a Melbourne court which bailed two men charged with supplying funds to Sri Lanka's Tamil Tigers, Ruddock told reporters in Melbourne: “If our understanding of the way in which the presumption against bail should operate ... is misunderstood, we will look at whether or not further amendments are required.

“I don’t wish to reflect upon decisions of judicial officers ... but they help us to understand how the law is being interpreted.

“If, on appeal, those decisions were upheld, the government might well want to give the courts some further advice as to how these issues ought to be addressed.”

Spencer Zifcak, associate professor of law at La Trobe University, said these comments were a clear attack on judicial independence.

“The implication of what the Attorney-General was saying was that he might have to pass legislation to change [the way the courts are interpreting the Act]. And that raises really significant constitutional questions, because what it amounts to is a direction to the courts not to exercise jurisdiction in that particular way. That’s really a quite fundamental attack — if it were to come about — on the idea of judicial independence,” he said.

However, in an interview with Lawyers Weekly, Philip Ruddock defended the comments, saying review of legislation is part of his role as Attorney-General.

“It is perfectly proper and appropriate and always the role of the Attorney-General in relation to each station for which he or she is responsible, to propose amendments.

“I haven’t criticised the judicial officer who came to the decision but what I have said is, given the decision that was taken, we may want to address again the legislation which applies in this area.

“That’s not critical of the judiciary or the judicial office, but what it is saying is that the Commonwealth can properly exercise its legislative function in the same way as the courts properly exercise the judicial function.

“The decisions made by judicial officers are made on the basis of legislation and if the parliament doesn’t like the decision reached, you aren’t being critical of the judge or magistrate in simply saying that the parliament may want to address the law again. I would be surprised if any lawyer worth his salt would fail to understand that distinction,” Ruddock said.

However, Andrew Lynch from the Gilbert + Tobin Centre for Public Law said the question remains: why didn’t the Attorney-General appeal the decision in light of the “very direct, negative comments” he made?

Lynch said any attempt to make bail harder to get for terrorism suspects could in fact raise constitutional issues.

“The suggestion that bail could be made harder to get for terrorism suspects seems quite odd because there’s already a strong presumption against it being granted. Any further strengthening of the presumption against bail would almost amount to denying the possibility of it and I think there are constitutional problems with parliament robbing courts of that power.

“That pre-trial detention without any kind of bail process would be detention by the executive, not by a court after its considered evidence about whether bail should or should not be granted. And I guess that runs into the problem of whether the executive is then exercising judicial power — the power of detention,” Lynch said.

Just hours after Haneef was granted bail, the Minister for Immigration and Citizenship Kevin Andrews, decided to revoke Haneef’s skilled worker visa on character grounds, with the effect of making Haneef an unlawful non-citizen and therefore subject to immigration detention. At the same time, a criminal justice certificate was issued meaning Haneef could not be deported and therefore faced immigration detention until the trial, and likely deportation regardless of the outcome.

Representatives from the legal profession were vocal in criticising the government’s decision, saying that while the immigration minister had legislative authority to cancel the visa, he should not have done so. President of the Australian Bar Association, Stephen Estcourt QC, called the decision to cancel Haneef’s visa a “threat to the rule of law”. Tony Morris QC wrote in the Courier-Mail that using the migration laws to continue to imprison a man whom the court had ordered be released “was a clear abuse of power”.

Tim Bugg, president of the Law Council of Australia (LCA) told Lawyers Weekly “there is real concern that the Minister’s decision thwarted the court process, which is quite independent of the executive arm of government”.

Haneef was released from immigration detention detention late last week after the charges against him were dropped, but according to Zifcak this is just the latest example of the executive arm of government attacking the authority of the judiciary when it comes to terrorism. He cites the case of terror suspect Jack Thomas, who was acquitted of a series of terror-related charges because evidence against him had been improperly obtained and was inadmissible.

“Straight after that the government slapped him under a control order — so in effect they just detained him despite the fact that he had been acquitted,” Zifcak said.

Andrew Lynch agrees that cancelling Haneef’s visa undermined the court’s decision.

“I think it’s a very unfortunate event particularly happening just hours after the successful bail application. The government’s line of course is that this is a very different process under a different Act.

“But even if it wasn’t intended as such, the public perception is that the government got a result in the court that it didn’t like, and rather than appealing that, the Minister for Immigration came out a few hours later and revoked the visa. I think that does feed into the public perception of the executive using an alternative process at its disposal to get a result that the courts denied it, and that’s not a good look,” Lynch said.

However, spokesperson for Kevin Andrews, Kate Walshe, said the decision to revoke the visa wouldn’t have looked any better regardless of when it was made.

“To the question on interfering with or influencing the judge’s decision, it was quite the contrary. The minister waited until the conclusion of that decision by the judge but he received advice on the morning of the cancellation decision which influenced his decision.

“Many people would have perhaps said it was improper if the minister made his decision whilst the judge was considering her decision — that that would be influential. There was no time that one could suggest was optimal but the reality is the information was provided to the minister on the morning and following that information, the minister made his decision quite independently of the court proceedings,” Walshe said.

Lynch agrees that the timing may never have looked good, but said the visa need not have been revoked in the first place.

“I suppose the argument is, why make the decision? That particular aspect of section 501 [of the Migration Act under which the visa was cancelled] has to be the weakest basis for failing the character test. To use the association element of section 501 to revoke his visa because he has associated with people who are reasonably suspected of criminal conduct, not even charged let alone convicted of that conduct, seems to me to be quite a drastic step, particularly at the same time you have a note from his employer, the Gold Coast Hospital, who is saying he was a model employee and is still welcome back to work there,” he said.

Bugg has said that lawyers have an overwhelming responsibility to stand up for the rights of individuals in cases such as these.

“Unfortunately there is a widely held view, and one also shared by the LCA, that the anti-terrorism issues that have arisen over recent years have been very much driven by political considerations. We don’t dispute that the government has a duty to protect the citizens of this country, but it should also make sure the legislation doesn’t unnecessarily impinge on the rights of individuals and rights which have been established over centuries,” he said.

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